Sunday, February 28, 2010

On the difficulty of keeping secrets, continued

Robert Baer, a former CIA field agent, discusses (in, the Wall Street Journal's digital edition) the problem technology poses for secret-keeping in the context of the Jan. 20, 2010 killing of a "Hamas military leader" in Dubai. This killing, widely attributed to Mossad, Israel's secret service, at first looked slick and now looks almost amateurish, so extensive was the digital foot-print left behind, on cellphones and cameras, by the killers. The same problem, Baer notes, led to the Italian authorities' identification (and successful prosecution) of CIA agents for their role in the rendition of an "Egyptian cleric" from Italian soil to Egypt in 2003.

Baer notes that the Predator drone strikes in Pakistan are more discrete, because they are more shrouded by "the fog of war." Perhaps. But while there may be few databases being compiled in the areas where the Predator missiles land, there must be a huge amount of data flowing to computers back in the US, where the firing decisions reportedly are made. Is this digital stream being deleted as soon as it arrives? That would seem to be a rash step, since there may be information to be gleaned from it in after-the-fact reviews. If so, then this information has been stored somewhere. Digital information may or may not yearn to be free, but it does seem to have nine lives. So ultimately the fog of war may lift considerably on the details of the Predator program as well.

Saturday, February 27, 2010

Guantanamo "suicides" and the difficulty of keeping secrets

An appalling story by Scott Horton, forthcoming in Harper's but now up on the web, offers very troubling evidence that three supposed suicides at Guantanamo were not that, and may instead have been homicides, deliberate or inadvertent, in the course of interrogation at an off-the-books building at the base. The killings are deeply disturbing. So is the possibility that there was a black site at Guantanamo, a site that highly disciplined soldiers obeyed orders to disregard. So is the strong suggestion of a deliberate coverup, while the military commander at Guantanamo accused the dead men of using suicide as a tactic. And so is the seemingly lackadaisical investigation of these events after one soldier, a witness to some of the relevant circumstances, came forward, with the aid of Seton Hall law professor Mark Denbeaux, to report what he knew to the Obama Department of Justice.

Horton's revelations, which give substance to the concerns suggested by a Seton Hall analysis of military documents revealed under FOIA, also point to a striking feature of our lives today: it seems to be very hard to leave no tracks. Wrongdoers -- from common criminals to tyrants -- have always faced the problem of what to do with the witnesses. But the apparatus of modern power compounds this difficulty. The guards had routines, supposedly very vigilant ones; how could these suicides have been accomplished, under the scrutiny the prisoners were supposed to be subjected to? If the guards didn't follow the routines, why weren't they punished? (A military "informal investigation" attributed the guards' supposed failure to an atmosphere of "concessions" to the detainees' comfort.) If the men killed themselves by hanging, did the autopsies confirm that their necks and throats bore the marks of hanging rather than "manual strangulation"? Where were the neck organs of the dead men -- organs not present when their bodies were returned to their families?

These are hardly the first embarrassing revelations of the war on terror. No doubt we do not know everything that has been done in this war, but we know far more than those who aimed to keep the secrets would have preferred. The technology of oversight, and the tremendous systematization of our lives, may make all of us less free than we would prefer. But they also make it hard to be a bad guy anymore.

Sunday, February 14, 2010

And now for something completely different: Avatar and Ray Bradbury's "Here There Be Tygers"

Coming home from Avatar -- a wonderful movie experience -- I found myself thinking of Ray Bradbury's story "Here There Be Tygers." The last time I read this story may have been decades ago, and I don't think the Wikipedia entry gets the plot entirely right, but as I recall the plot it shares a number of features with Avatar.

In "Here There Be Tygers," humans arrive at a wonderful planet where they are made fabulously welcome. But they are there to extract natural resources, and when they try to drill in a particularly idyllic spot the planet -- which we now learn is alive, and sentient -- destroys their machines, and all but one of the humans leave, I think because they are forced to. In the last moments of the story, the narrator (one of the people departing) catches a glimpse of the only human who stayed, still enjoying the paradise the planet offered to those who did not violate her.

Avatar's plot isn't the same by any means. But the idea of humans as savagely violating the natural beauty of a world that is self-aware is common to both the story and the film. I don't mean to suggest any improper influence, but rather just that artists do naturally influence each other, and I wonder if Bradbury's story influenced James Cameron. I remember finding Bradbury's story magical when I read it long ago, and Cameron's movie at its best is magical too; it would be nice to think that they are linked across 5 decades.

Monday, February 8, 2010

Clinical Theory Workshop 25th anniversary conference, and Clinical Law Review writers' workshop, Oct. 1 - 3, 2010

Here's an announcement of two conferences, both of which I hope will interest you, and the first of which I'm organizing (with generous help from a number of other workshop colleagues):

Please save the dates for two clinical scholarship conferences -- on a single weekend next fall.

The first will be a celebration of the 25th anniversary of the Clinical Theory Workshop, to be held all day Friday, October 1, 2010, and on the morning of Saturday, October 2, at New York Law School. Its theme will be: "Twenty-five years of clinical scholarship: What have we learned, and what should we work on next?"

The second will be the third writers' workshop sponsored by the Clinical Law Review, to be held Saturday afternoon, October 2, and Sunday morning, October 3, at NYU School of Law. The writers' workshop welcomes clinicians with works-in-progress on all topics, whether specially clinical or not, and will meet in small groups whose members will discuss and offer suggestions for each other's works.

The two workshops are independent but also interrelated. More information on each will be coming in the next few weeks. Meanwhile, we hope you'll save the dates for both!

Steve Ellmann (chair of the New York Law School Clinical Theory Workshop)
Kate Kruse, Michael Pinard, and Randy Hertz (co-editors-in-chief of the Clinical Law Review)

Sunday, February 7, 2010

Are law schools conservative institutions?

How conservative is legal education?

The most frequent answer to this question is probably "very conservative." But if that answer is correct, it's somewhat surprising. As a group, law professors appear to be quite a lot more politically liberal than the country as a whole, and probably more liberal than their students.

Of course, they could be politically liberal but intellectually conservative, still trudging the same paths as their forebears of past generations. But this picture doesn't seem accurate either. After all, a lot of what law professors routinely do has to be to stay up to date -- not just on what other scholars are writing, but on the latest court decisions and the newest statutes. Perhaps the subject-matter is continuously changing, but the intellectual apparatus brought to bear remains the same? Not so: at least from the time of the legal realists of the first half of the twentieth century, academic conceptions of law have been in ferment, and scholars have pursued one "law and" discipline after another.

Perhaps the teaching methodology has somehow stayed the same, despite all this intellectual change? Certainly law schools have been dominated by the "Socratic method" for most of the past 100 years, since the advocates of this pedagogy won their battle over those who thought other techniques such as lectures were better designed to get essential information across. (Among the losers were the founders of my law school, New York Law School, which long since became part of the Socratic consensus.)

Only this charge isn't terribly persuasive either. The past 40 years have seen at least three major shifts in law schools' programs: the rise of clinical legal education, the intensification and professionalization of legal writing education, and the rise of academic support programs as well. Clinicans, for example, now make up the single largest section of law faculty in the Association of American Law Schools.

So what's left that's pedagogically conservative? The central answer would be the continued use of the Socratic method in the doctrinal courses of the curriculum, which still probably make up the large majority of the classes offered at every school. But even here the case isn't entirely convincing. Surely much of what is actually taught in law school classrooms wouldn't have been taught 50 years ago -- not only the new cases, of course, but also the new perspectives, some of them profoundly distant from an assiduous focus on the particulars of legal doctrine. It also seems pretty clear that the Socratic method as practiced today is less of a hazing ritual than it was, or was imagined to be, a generation or two ago. (Think of "The Paper Chase.")

One might almost say that the only really continuous feature is that law professors teach by questioning their students, and often challenging their answers, rather than by lecture. That's an element of continuity, certainly, but it seems odd to call a preference for interactive classroom experiences proof of conservatism.

I admit I am overstating the case. The hierarchical feel of the large law school classroom, though less sharp-edged than it once was, still persists. A focus on mastering a certain style of dispassionate, meticulous deployment of legal arguments remains important, both as an intellectual aim and a value that professors model and generally hope to impart. And a concern with the interpretation of more-or-less authoritative texts -- constitutions, statutes, regulations, and of course prior cases -- seems built into legal work and legal teaching, and is necessarily at least somewhat past-looking.

Moreover, though this is a matter as much of institutional governance as of pedagogy, tenure -- first advanced as a protection of independent, radical thought in universities -- is in important ways a conservative institution. Those who have it don't want it taken away, and sometimes don't want it shared with others who don't yet have it, since either or both of those developments would shift the balance of institutional power. At the same time, those who didn't have it and have gained it are sometimes seen as having become more academic (that is, more conservative and depoliticized) as a result.

Still, for a supposedly conservative institution, legal education seems pretty sprightly to me. Even the current movement in some schools towards diminishing teaching loads so as to give faculty more time for scholarship can't exactly be called conservative. To value teaching over scholarship may be right or wrong, but to reduce teaching loads in favor of scholarship is (for its advocates) a "reform," in other words a change, and at least in that sense not conservative. It isn't a return to, or an adherence to, the values of the past but an assertion of the right direction for future development.

The upshot, I think, is that it's a mistake to regard law schools as impervious to change. There's lots of change in the air -- some that I might dislike, or you might, but change nonetheless. (And there are also profound economic forces pressing law schools to change whether they want to or not.) So the question isn't, will law schools change, but rather, how will they change? That's a better question, offering hope to everyone who welcomes change, but challenging them to win the arguments over which changes to make.